JUDGMENT
1. The State impugns a verdict of acquittal against respondents who were charged with the commission of an offence punishable under Para 59 read with Para 4 of the Dock Workers (Safety, Health and Welfare) Scheme, 1961.
2. Respondents were functioning as Clearing Agents in the year 1981. Their requirements of dock workers used to be met by the Dock Labour Board, wrongly mentioned as Bombay Custom House Agents Association in the judgment of the Metropolitan Magistrate. One of the dock workers supplied for work to the respondents on August 27, 1981 was Ananda Laxman Bellote. While working, Ananda met with a mishap which resulted in his death. Written intimation of this mishap was not given by respondents in the sense that neither the concern which is respondent No. 1 nor respondents 2 to 5 personally, addressed a communication about the death of Ananda to the Inspector, Dock Safety in the Bombay Port.
Alleging that the employer-respondents had committed a breach of Paras 4(1) of the Scheme, the complainant a Senior Inspector, Dock Safety filed a complaint against them. The prayer was that respondents be penalised as required by Paragraph 59 of the said Scheme.
P.W. 1 examined as a witness on behalf of the complainant has admitted that on August 27, 1981 he received a telephone message from one of his Officers about the death of Ananda while engaged in work. The same day the Bombay Custom House Agents Association which is an Association of Custom House Agents including Clearing Agents, sent a letter to P.W. 1 informing him of the above mishap. The Magistrate has on the basis of admissions given by witnesses examined by the complainant come to the conclusion that the respondents were not Ananda’s employers. That according to the Magistrate was clear from the fact that Ananda was on the roll of the Dock Labour Board, was paid his wages by that Board and was under the dominion and control in all matters of the said Board. Holding thus, he deemed it unnecessary to go into the interferences arising from the admissions of P.W. 1 reproduced above. The State takes exception to the acquittal in this appeal.
3. The Scheme does not contain a definition of the words “dock worker” and “employer”. In Para 2(8) the Scheme says that these words shall have the meanings assigned to them by the Dock Workers (Regulation of Employment) Act, 1948. The said Act defines a “dock worker” as –
“a person employed or to be employed in, or in the vicinity of, any port on work in connection with the loading, unloading, movement or storage of cargoes, or work in connection with the preparation of ships or other vessels for the receipt or discharge of cargoes or leaving port.”
The word “employer” in relation to a dock worker has been given the meaning –
“Person by whom he is employed or to be employed as aforesaid.”
Para 4(1) which deals with notice of accidents and dangerous occurrences requires notice of a fatal accident to be given forthwith by telegram, telephone, special messenger or written message within four hours of the occurrence to …….. an Inspector. P.W. 1 speaks of the telephone message given to him by an Officer of the Bombay Port Trust, the said Officer being one of his subordinates. P.W. 1’s information appears to have received a message of the mishap from either the respondents or some agent acting on their behalf. Again, the letter received from the Bombay Custom House Agents Association came on the very day of the mishap to P.W. 1. The appellant’s case is that the respondents were the employers of Ananda and it was for them to give the intimation required under sub-paras (1) and (5) of Para 4. Admittedly, Ananda was not in the direct employment of the respondents. Respondents as Clearing Agents were getting their supply of dock workers from the Dock Labour Board. This Board used to pay the wages of the dock workers and exercised the required control and supervision over the dock workers on it rolls. Even so, it is not possible to agree with the Magistrate’s conclusion that a Clearing Agent like the respondents were not the employers for the purpose of giving the intimation required by Para 4. The meaning given to the expression. “dock worker” indicates that the said worker is one who is employed in connection with loading and unloading of cargo, etc., etc., The employer of such a dock worker is the person by whom he is employed. The task of Clearing Agent is to get a ship loaded, unloaded, prepared, etc., etc. Though his requirements of labour are met by the Board, it is he who is incharge of the task to be carried out by the dock workers. The supervision that he exercises over the workers is to see that the work undertaken by him is properly carried out. To that extent he becomes the person employing the dock workers. It is not necessary that the dock workers should be a direct employee of the Clearing Agent or that the Clearing Agent should be one who has disciplinary and administrative control over him. Neither is it necessary that the dock worker should be paid his wages or salary directly by the Clearing Agent. An expression can have different meanings for different purposes. Having regard to the obligations laid upon employers by various sub-paragraphs of Para 4 of the Scheme, it must be held that for the purpose of giving the required intimation, an employer of a dock worker would be the Clearing Agent to whom the dock worker injured or dead is assigned for work. Disagreeing with the Magistrate I hold that respondents were the employers of Ananda and were thus under an obligation to give the required intimation contemplated by sub-paras (1) and (5) of Para 4.
4. Can it be said that the obligation cast by sub-paras (1) and (5) of Para 4 had not been discharged by the employers ? A telephonic message had been give on August 27, 1981 to a subordinate of P.W.I. This was on the day of the mishap itself. There is no reason not to believe that the said message was based on information received from the respondents or an agent or employee of theirs. Para 6(2) permits the employer of a dock worker to give the required information either by himself, his agents or employees. For the purposes of discharging this obligation the Bombay Custom House Clearing Agents Association would be an agent of the respondents. That Association is an Association of Clearing Agents and respondents as a Clearing Agent, are a member of that Association. That Association was, therefore, an agent of the respondents for the purpose of giving the information required by Para 4. Therefore, on facts also it cannot be said that there has been a failure of duty rendering respondents liable to be penalised under paragraph 59.
5. To conclude, though the Magistrate was in error on the finding that respondents were not the employers of Ananda, on facts, it has to be found that the respondents have not committed a breach of the obligation cast upon them by sub-paras (1) and (5) of Para 4 of the scheme. Consequently, the acquittal recorded by the Magistrate has to be confirmed thought for reasons different than those which commended themselves to him. The appeal fails and is hereby dismissed.
